Preventing sexual harassment of women at work – an important factor on the path to gender parity

Intl Women's DayGender parity is a subject of much discussion in these times, with the World Economic Forum estimating that it will take about 117 years to achieve this feat globally, according to its Global Gender Gap Report 2015. On the occasion of International Women’s Day, we thought it ideal to evaluate the transition of the industry in India with respect to a game-changing Act incorporated in India – the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act 2013 (hereinafter referred to as the ‘Act’). The rationale behind it being enacted was to ensure safe working spaces for women and to build enabling work environments that respect women’s right to equality of status and opportunity.

On this occasion of International Women’s Day 2016, we thought it apt to outline the Act’s impact on the industry this far:

  1. Are women really speaking up? Although with the Act, Indian women have attained legal equality in the workplace, a more holistic impact on society will only be achieved through social progress. Without a new perspective on old societal norms, the law, despite its provisions, will remain relatively powerless against entrenched stereotypes.  The law gives protection for confidentiality and also against retaliation; however, the fear around street harassment as a form of retaliation outside of workplace, or graver challenges, like fear of acid attacks or similar untoward behavior by the harasser, still exists.  Until the aggrieved woman is truly free from such fears, India will be unable to decipher the reality of how prominent or frequent sexual harassment at the workplace truly is.
  1. Setting up of ICC:  The Act mandates formation of the Internal Complaints Committee (ICC) for every employer of a workplace having 10 or more employees. It states that the ICC must be constituted at all administrative units or offices. Companies in the country having offices in several locations have been citing challenges in constituting such a committee in all of these places, while another set of companies are bending the rules by constituting some form of similar office – e.g. ombudsman, grievance cell, etc. The Act, therefore, needs stricter enforcement and reinforcement to improve compliance for its success. A noteworthy achievement on this front though is the Chennai High Court judgment on ISG Novasoft Technologies Ltd. (Petition No.463 of 2012) for imposing a penalty of INR 1.68 crore for not constituting ICC as per the Act.
  1. Stricter code of conduct policy:  The Act prohibits a wide range of behavior as sexual harassment (Sec. 2 (n) of the PoSH Act), but it does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious. The ICC recommendations reveal that the benchmark most cases are applied to are that harassment is illegal when it is frequent or severe so that it creates a hostile or offensive work environment, or when it results in an adverse employment decision (such as the victim being fired or demoted).  Companies, however, are drafting stricter internal policies, such as the code of conduct, to cover and curb less grievous behavior. This helps the corporations in projecting themselves as ‘zero-tolerant’ for any gender bias or creation of hostile work environment.
  1. Melting pot of cultures: Today, we live in a connected world where geographical boundaries are often crossed for business and trade.  This exposes each of us to various cultures and acceptable behaviors in each of those. Depending on the region and the beliefs in the area, one has to be careful to not suggest or create any form of “quid pro quo” (this for that) or “hostile” work environment.  Large corporations are now conducting sensitization trainings for expatriate employees or secondment personnel before they start work in foreign regions. This not only provides them with a precursor on what is not acceptable but also makes them more comfortable – most certainly a win-win situation.
  1. Voluntary relationship turning bad:  The Act, Rules, and Handbook (issued by the Ministry of Women and Child Development on November 2015) reflect various scenarios of harassment of sexual nature.  These scenarios can be broadly classified as “quid pro quo” and “hostile environment.”  “Quid pro quo harassment” is inappropriate behaviour of implied or explicit promise of preferential or detrimental treatment in employment or implied or expressed threat about the victim’s present or future employment status. The other form is creating a hostile, intimidating or an offensive work environment or subjecting humiliating treatment that is likely to affect the victim’s health or safety. The Corporations’ views are divided when it comes down to a sexual relationship which had existed between the aggrieved woman and her supervisor, which was of “a voluntary nature” in the past but later was filed as harassment.  The focus should be on under the “hostile environment” theory and proper inquiry should be focused on the “unwelcomed” conduct rather than the “voluntary-ness” of the participation in the past. It is the impact and not the intent that matters.
  1. Malicious complaints: The Act has the right approach to cover for malicious complaints and to guide punishment for false information provided. A claim not proven does not make the claim false. Only after separate proper enquiry should one conclude malicious or false nature of information supplied by the aggrieved.  Corporations are also encouraging complainants, depending on the nature of harassment, to show clearly and responsibly that the conduct of the respondent is unwelcome. At times, the aggrieved may state that she ceased to pay heed or participate in any such conversations. However, simply ceasing to participate may not be sufficient to show that the continuing activity is longer welcome to her.

According to a New York Times article, published on January 2015, Indian women participation in the labor force is approximately 27 percent of the country’s total women population. India is only marginally ahead of Saudi Arabia, among the G-20s with these statistics. The NYT article notes that usually, economic growth in lower-middle-income countries creates more jobs for women. India is an exception as woman participation is down from 37 percent in 2005 to 27 percent. Status and culture are considered as one of the probable reasons for this decline. If India is going to be able to effectively contribute to global gender parity, it is imperative that such laws safeguarding women’s rights are upheld not only in form but also in spirit.

Follow @EY_India and track #EYForensic for regular updates

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